Robocall Away, (Some) Marketers – FCC Says

Marketers working on the government’s behalf can robocall cell and landline phones, despite the law preventing other marketers from doing so without prior consent, according to this week’s ruling from the Federal Communications Commission.

“Government agencies and their contractors can conduct research,” writes John Eggerton for BroadcastingCable.com on Wednesday, “and legislators can inform constituents about, say, an upcoming town hall, without having to get prior consent.”

On Wednesday, a defense attorney specializing in the law contacted Target Marketing to provide his opinion about the FCC ruling regarding the Telephone Consumer Protection Act (TCPA) that he says “bars businesses from making numerous autodialed or prerecorded calls to a person’s cellphone — and similar telemarketing calls to a person’s home phone.”

Eric Troutman, a partner at the international law firm Dorsey & Whitney, works to defend banking and financial services marketers who need clarity on the TCPA. He says it’s a step forward for the FCC to note that the law may adversely impact free speech and that at least in the government’s case, the ruling shows “subjecting the federal government to the TCPA’s prohibitions would significantly constrain the government’s ability to communicate with its citizens.”

Troutman emphasizes this passage in the ruling.

“This is significant,” he says, “because the FCC has previously, and somewhat disingenuously, suggested that the TCPA … does not unnecessarily burden or chill free speech. Yet the Commission now states ‘[i]f the federal government were prohibited from making autodialed or prerecorded or artificial voice calls to communicate with its citizens, it would impair — in some cases, severely — the government’s ability to communicate with the public.’ While this is undoubtedly so, the FCC appears to forget that the First Amendment protects the rights of citizens to free speech, not just the rights of governments.

"The FCC also expressly admits,” he continues, laying out possible arguments for telemarketers, “that it is carving out the government, in part, due to its impression that the substance of the speech to be expected from the government is ‘benevolent.’ … But such content-based exemptions to an otherwise content-neutral statute may prove the TCPA’s ultimate undoing. The First Amendment does not tolerate content-based restrictions on speech and the FCC’s recent TCPA rulings are becoming dangerously close to outright regulation of what speech is, and is not, to be permitted in the United States."